DEPUTY COMMISSIONER OF AGRICULTURAL INCOME-TAX AND SALES TAX NORTH ZONE KOZHIKODE Vs. HAJI P K MAMMOO

JUDGEMENT

(1.) THE State of Kerala through the Deputy Commissioner of Agricultural Income-tax and Sales Tax, North Zone, Kozhikode, seeks by this petition to review the judgment passed by this Court in T.R.C. No. 92 of 1959 on 1st November, 1960 (Since reported as Haji P. K. Mammoo v. State of Kerala [1961] 12 S.T.C. 142). THE only question that was in controversy in the case was whether rule 17(3-A) of the Madras General Sales Tax Rules was valid or not. THE contention raised by the assessee-petitioner was that the said rule was invalid for want of previous publication for a period of not less than four weeks as required by section 19(4) of the Madras General Sales Tax Act, 1939. THE tax revision case came before this Court once previously and this Court remanded the case; and it was only after remand the question of invalidity of the rule was raised for the first time. When it was raised, the State Representative admitted that the rule was not previously published in the Government Gazette, but it was otherwise published. He contended further that even if the rule was not previously published, for that reason the rule was not invalid. THE Department and the Sales Tax Appellate Tribunal agreed with that contention and held that the rule was good and valid; but this Court in revision set aside that order and held that in the absence of pre-publication as contemplated by section 19(4) the rule was invalid. Subsequent to that decision the State has filed this application for review of the said judgment under section 12-B(7) of the Sales Tax Act. THE time prescribed for review by rule 13-C(2)(b) is one year and this application has been filed well within that time. THE ground on which the application is brought is that facts, which were not before the High Court when it passed the order, have come to light subsequently. After the disposal of the case by this Court the State of Kerala appears to have referred to the State of Madras as to whether there was previous publication of the rule as contemplated, by section 19(4) of the Act and the State of Madras appears to have pointed out that there was previous publication. This is evident from page 402 of the Rules Supplement to Part I of the Fort St. George Gazette dated 2nd December, 1953. THE learned advocate for the assessee contends that it was not as if the fact of previous publication was not before the High Court on the previous occasion; but the fact of the lack of previous publication was conceded by the State Representative; and therefore it has to be construed that no new facts, which were not before the Court when the Court passed the order, are now brought to its notice. Thus, according to him, the petition has to be dismissed. We do not agree. THE concession made by the State Representative that the rule was not previously published was on a mistake of fact and therefore the real fact of the existence of previous publication under section 19(4) was not brought to the notice of the Court. That fact of previous publication, which really existed, was not before this Court when it passed the order. THE fact of such previous publication has been brought to our notice now only and therefore section 12-B(7) applies to the case. No other point has been argued and in the light of the new fact the application for review has to be allowed. THErefore we allow the application, review the order passed by this Court in T.R.C. No. 92 of 1959 (Since reported as Haji P. K. Mammoo v. State of Kerala [1961] 12 S.T.C. 142) and dismiss the tax revision case. In the special circumstances of the case, which culminated in this review application, we direct the State to pay costs to the assessee, which we fix at Rs. 100. Petition allowed.